Canada’s Federal Court ruled on Wednesday that the Safe Third Country Agreement (STCA) which allows Canada to send some refugee claimants back to the United States is unconstitutional.
Justice Ann Marie McDonald said the STCA, which stops people seeking asylum from entering either Canada or the United States at official Canada-U.S. border crossings, violates the section of the Charter guaranteeing “the right to life, liberty and security of the person.”
“The applicants have provided significant evidence of the risks and challenges faced by STCA ineligible claimants when they are returned to the U.S.,” McDonald said.
“The evidence establishes that the conduct of Canadian officials in applying the provisions of the STCA will provoke certain, and known, reactions by U.S. officials. In my view, the risk of detention for the sake of ‘administrative’ compliance with the provisions of the STCA cannot be justified,” she added.
However, McDonald gave the Canadian government six months to respond to her landmark decision in the country’s history.
Under the STCA, which took effect in 2004, Canada and the United States recognize each other as safe places to seek protection.
It means Canada can turn back potential refugees who arrive at land ports of entry along the Canada-U.S. border on the basis they must pursue their claims in the United States, the country where they first arrived.
Canadian refugee advocates have vigorously fought the deal, arguing the United States is not always a safe country for people fleeing persecution.
Several refugee claimants took the case to court along with the Canadian Council for Refugees, the Canadian Council of Churches and others, which participated in the proceedings as public interest parties.
In her ruling, McDonald concluded that the agreement results in ineligible claimants being imprisoned by the U.S. authorities.
The Canadian government argued that while failed claimants are subject to detention in the United States, there is a fair detention review process available. But McDonald rejected that argument.
The government also argued that striking down the agreement would lead to an increase in claims and put the overall refugee system at risk. Enditem